FACV No. 2 of 1998
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 2 OF 1998 (CIVIL)
(ON APPEAL FROM CACV No. 198 OF 1997 and CACV 200 of 1997)
Civil Appeal No. 198/97
THANG THIEU QUYEN
HO QUAY NGUYEN
CHU MING HONG
HOANG VIET SINH
TRAN HOA BUU
TUONG CAN QUANG
DIEP MINH QUANG
THE DIRECTOR OF IMMIGRATION
THE SUPERINTENDENT OF HIGH ISLAND DETENTION CENTRE
Civil Appeal No. 200/97
|LONG QUOC TUONG and 111 OTHERS
THE DIRECTOR OF IMMIGRATION
THE SUPERINTENDENT OF HIGH ISLAND DETENTION CENTRE
Court: Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ, Mr Justice Bokhary PJ and Sir Anthony Mason NPJ
Date of Hearing: 16 and 17 July 1998
Date of Judgment: 23 July 1998
J U D G M E N T
Chief Justice Li :
1. In this appeal, we are concerned with administrative powers of detention under the Immigration Ordinance ("the Ordinance"). It is common ground (and rightly so) that they are subject to the implied limitation that they can only be exercised reasonably. The question is whether the applicants' current detention is lawful. On a habeas corpus challenge, the judge held that it was not and ordered their release. The Court of Appeal reversed him. As a result of undertakings given to the High Court by the Director of Immigration ("the Director"), the applicants are not presently in detention.
2. The applicants are 119 individuals and their families. They are ethnic Chinese and had lived in Vietnam. They left that country in the aftermath of the Sino-Vietnamese War and lived in Mainland China for periods of between 5 and 15 years. They then came to Hong Kong and were detained on arrival. 16 of them had been removed to the Mainland but subsequently returned to Hong Kong.
3. Apart from 3 of them, the applicants arrived in Hong Kong between July 1989 and August 1994. The 3 applicants, namely Mr Phu Tuu Minh (A114), Mr Diep Minh Quang (A117) and Mr Hoang Thien Tuong (A118), are late arrivals; they arrived in April or May 1996. I shall refer to them as "the 3 applicants" and the other 116 Applicants as "the applicants". In this judgment, I shall first deal with the applicants and then separately with the 3 applicants. Their respective cases are different.
4. After the resumption of the exercise of sovereignty on 1 July 1997, it is appropriate that I refer to China as the Mainland.
5. Since their arrival in Hong Kong, the applicants have been successively detained under different detention powers in the Ordinance. Their detention can be divided into three periods:
(1) From their arrival to 10 January 1997.
(2) From 10 January 1997 to the making of removal orders starting from June 1997 that they be sent back to the Mainland.
6. I shall refer to them respectively as the 1st, 2nd and 3rd period of detention. Before dealing with them, I shall first refer to the scheme in Part IIIA of the Ordinance.
Part IIIA of the Immigration Ordinance
7. Persons who had lived in Vietnam immediately before coming to Hong Kong, either directly or indirectly following a brief stop on the Mainland, to seek asylum are classified by the immigration authorities as Vietnamese Migrants (VMs). They have a special position in the immigration law of Hong Kong. The scheme in Part IIIA which bears the heading "Vietnamese Refugees" applies.
8. Under section 13A(1), an immigration officer:
"may permit any person ... who was previously resident in Vietnam and who has been examined under section 4(1)(a) ... to remain in Hong Kong as a refugee pending his resettlement elsewhere."
Section 4(1)(a), which is not part of Part IIIA, provides:
"For the purposes of this Ordinance, an immigration officer ... may ... examine any person on his arrival or landing in ... Hong Kong, or if he has reasonable cause for believing that such person landed in Hong Kong unlawfully, at any time."
9. Pending a decision to grant or refuse him permission to remain, he may be detained under the authority of the Director. Section 13D(1) provides:
"... any resident or former resident of Vietnam who -
(a) arrives in Hong Kong not holding a travel document which bears an unexpired visa issued by or on behalf of the Director, and
(b) has not been granted an exemption under section 61(2),
may, ... be detained under the authority of the Director in such detention centre as an immigration officer may specify pending a decision to grant or refuse him permission to remain in Hong Kong or, after a decision to refuse him such permission, pending his removal from Hong Kong, ..."
10. After a screening process, permission to remain as a refugee pending his resettlement elsewhere will either be granted or refused. Where it is granted, there is no power to detain him further pending resettlement elsewhere. But the Director has the power to remove him from Hong Kong. Section 13E(1) provides:
"The Director may at any time order any Vietnamese refugee or person detained in Hong Kong under section 13D to be removed from Hong Kong."
In relation to a person screened in as refugee, this would be to the place where he would be resettled. He can be detained until he is so removed. Section 32(1)(a) provides:
"A person who is to be removed from Hong Kong under section 18 or 13E ... may be detained until he is so removed, ..."
11. Where permission to remain as a refugee pending his resettlement elsewhere is refused, he may be detained under the Director's authority pending his removal: The second limb of section 13D(1) ("... after a decision to refuse him such permission, pending his removal from Hong Kong ..."). On such refusal, the Director must serve a notice notifying him of his right to apply for a review: Section 13D(3). The review is by the statutory Refugee Status Review Board: Section 13F. Unless it comes to a different conclusion, a person refused permission to remain as a refugee would be removed from Hong Kong. He would be repatriated back to Vietnam pursuant to section 13E..
1ST PERIOD OF DETENTION
12. On arrival, the Applicants were classified by the Director as Ex-China Vietnamese Illegal Immigrants (ECVIIs). This is the administrative classification given to persons who at one time lived in Vietnam but who subsequently lived on the Mainland. In contrast to Vietnamese Migrants, the Director did not apply the Part IIIA scheme to them.
13. Instead, the Director invoked a different set of provisions. These are the provisions regularly applied to illegal immigrants including those from the Mainland. An immigration official refused them permission to land under section 11(1). That provides:
"An immigration officer ... may, on the examination under section 4(1)(a) of a person who by virtue of section 7(1) may not land in Hong Kong without the permission of an immigration officer ..., give such person permission to land in Hong Kong but ... may refuse him such permission."
That refusal made them liable to removal under section 18(1)(a) and removal orders were made. That provides:
"Subject to subsection (2) an immigration officer ... may remove from Hong Kong ... a person who, pursuant to any examination whatsoever under section 4(1)(a), is under section 11(1) refused permission to land in Hong Kong."
Section 18(2) imposed a 2 months time limit for such removal. The Director then ordered their detention under section 32(1)(a) until removal.
14. In August 1993, the detention power used by the authorities shifted to section 13D(1). The second limb of this provision authorises detention of any resident or former resident of Vietnam under the authority of the Director "after a decision to refuse him such permission [to remain in Hong Kong] pending his removal from Hong Kong". The reason for the shift was this. By virtue of section 18(2), persons could not be removed under section 18(1)(a), the provision previously relied on, if he had been in Hong Kong for more than 2 months. This time limit, by virtue of section 18(3), did not apply to persons who had been previously resident in Vietnam, but this bar on its application was to expire on 31 December 1993. By August 1993, it was clear that the Legislature would not be extending this beyond that date. Since the applicants could not practically be removed within 2 months, section 18(1)(a) could no longer be used as the basis for the removal orders and without such orders, the Director could not detain until removal under section 32(1)(a). From August 1993, the Director decided to detain the applicants instead under the second limb of section 13D(1) pending removal to the Mainland.
15. Following this decision, the applicants who were in detention, having arrived before August 1993, were served with a refusal notice. After reciting the refusal of permission to land under section 11 and the detention under section 32(1)(a), it stated that "without prejudice thereto", a section 13D(1) detention order had been made pending removal under section 13E. It informed each such applicant that removal would be effected when administrative arrangements therefor were completed and that since "you have been established as having resided in China rather than Vietnam prior to your arrival in Hong Kong, you will not be subject to...